1. What Is Probate?

2. Why Doesn't a Will Automatically Avoid Probate?

3. What Does Alberta Law Say About Probate?

4. How Do You Determine Whether Probate Is Required?

5. Situations Where Probate Is Usually Required

6. Situations Where Probate May Not Be Required

7. Quick Reference Guide

8. Common Misconceptions About Probate

9. Why Do Banks Sometimes Require Probate?

10. Costs and Timelines

11. How Long Does Probate Take?

12. Common Mistakes Executors Make

13. When Should You Speak With a Probate Lawyer?

Introduction

When a loved one passes away, one of the first questions many executors ask is:

"There was a will...so do I still need probate?"

It is a common misunderstanding that having a valid will automatically avoids probate. In reality, a will and probate serve two very different purposes.

A will tells the world who should administer the estate and how the deceased wanted their assets distributed. Probate, on the other hand, is the Court of King's Bench of Alberta's formal confirmation that the will is valid and that the named executor has the legal authority to act on behalf of the estate.

For some estates, probate is essential before banks, investment companies, or the Alberta Land Titles Office will release or transfer assets. For others, probate may not be required at all.

Understanding the difference can save executors significant time, expense, and uncertainty while ensuring the estate is administered correctly.

What Is Probate?

Probate is a legal process through which the Court of King's Bench of Alberta confirms two important things:

1. that the will is legally valid; and

2. that the executor named in the will has the authority to administer the estate.

Once the Court issues a Grant of Probate, the executor has official court confirmation of their authority to deal with estate assets.

This document provides reassurance to third parties—including banks, investment firms, insurance companies, and Alberta Land Titles—that they are dealing with the correct individual.

In many cases, these organizations are responsible for protecting the deceased's assets. Before releasing substantial funds or transferring property, they may require formal proof that the executor has the legal authority to act.

Without a Grant of Probate, some institutions simply will not release estate assets, regardless of whether a will exists.

Why Doesn't a Will Automatically Avoid Probate?

One of the most common misconceptions about estate planning is that preparing a will eliminates the need for probate.

A will certainly makes administering an estate easier than if no will existed, but it does not replace the probate process.

Think of it this way:

• The will expresses the deceased's wishes and identifies the executor.

• Probate confirms that those wishes can legally be relied upon by everyone dealing with the estate.

Until probate is granted, a bank or land registry office has no independent way of knowing:

• whether the document presented is the deceased's most recent will;

• whether another will exists;

• whether the will has been challenged;

• whether the executor is legally entitled to act; or

• whether someone else has a superior legal claim to administer the estate.

By requiring probate in appropriate circumstances, financial institutions and government agencies protect both themselves and the beneficiaries of the estate.

Practical Example

Margaret dies in Calgary leaving a professionally prepared will naming her daughter, Emily, as executor.

Margaret owned:

• a home registered solely in her name;

• several investment accounts;

• a chequing account containing $185,000; and

• no joint owners on any of these assets.

Although the will clearly appoints Emily as executor, neither the investment company nor Alberta Land Titles is prepared to transfer the assets based solely on the will. Before they will release the funds or transfer title to the home, they require Emily to obtain a Grant of Probate from the Court.

The existence of the will made it clear who should act as executor, but probate provided the legal confirmation needed for the estate administration to proceed.

What Does Alberta Law Say About Probate?

In Alberta, probate is governed primarily by the Wills and Succession Act, the Surrogate Rules, and the procedures of the Court of King's Bench of Alberta.

When an executor applies for probate, the Court is not deciding how the estate should be divided. Instead, the Court is confirming several important legal questions, including:

• that the deceased has died;

• that the document presented is the deceased's valid last will;

• that the executor named in the will is entitled to act;

• that the required notices have been provided to beneficiaries and other interested parties; and

• that a Grant of Probate should be issued.

Once the Grant of Probate is issued, it becomes official evidence of the executor's authority to administer the estate.

It is important to understand that Alberta law does not require every estate with a will to obtain probate.

Instead, probate is required when the executor needs the Court's authority to deal with particular assets or where a third party requires formal proof before releasing property or funds.

This is why two estates with similar wills may have completely different probate requirements.

How Do You Determine Whether Probate Is Required?

One of the executor's first responsibilities is determining whether probate will be necessary.

There is no single rule that applies to every estate. Instead, the executor must look at the estate as a whole.

Some of the most important questions include:

• Did the deceased own real estate solely in their name?

• Were there significant bank or investment accounts?

• Were assets held jointly with another person?

• Did registered investments have named beneficiaries?

• Are financial institutions requesting a Grant of Probate?

• Is anyone disputing the will or questioning the executor's authority?

The answers to these questions usually determine whether probate will be required.

Situations Where Probate Is Usually Required

Although every estate is different, probate is commonly required in the following circumstances.

Solely Owned Real Estate

If the deceased owned a home, condominium, acreage, or other real estate solely in their name, probate will often be required before title can be transferred to a beneficiary or before the property can be sold.

This is because Alberta Land Titles generally requires proof that the executor has legal authority to deal with the property.

Significant Bank Accounts

Many financial institutions have internal policies that determine when probate is required before releasing estate funds.

The threshold varies from one institution to another.

Some banks may release relatively small balances without probate after reviewing an indemnity or other documentation. Others may require probate whenever the balance exceeds a certain amount or where there is uncertainty regarding the estate.

Even when the law does not specifically require probate, the bank may insist upon it as part of its risk management policies.

For this reason, executors should contact each financial institution early in the administration process to determine its specific requirements.

Investment Accounts

Investment firms frequently require probate before transferring:

• non-registered investment accounts;

• brokerage accounts;

• mutual funds;

• guaranteed investment certificates (GICs); and

• other investment assets held solely by the deceased.

Because these accounts often involve substantial sums of money, institutions generally want the protection provided by a Grant of Probate.

Business Interests

If the deceased owned:

• shares in a private corporation;

• a professional corporation;

• a partnership interest; or

• a sole proprietorship with significant assets,

probate is frequently required before ownership can be transferred or corporate records updated.

Business interests often involve additional legal and accounting considerations beyond the probate process itself.

Disputes or Uncertainty

Probate is also commonly required where there is uncertainty regarding the estate.

Examples include:

• concerns about the validity of the will;

• questions regarding the deceased's mental capacity;

• allegations of undue influence;

• uncertainty over which will is the most recent;

• disagreements regarding who should act as executor; or

• disputes among beneficiaries.

Obtaining probate provides formal court confirmation that can help resolve many of these issues before the estate administration proceeds.

Situations Where Probate May Not Be Required

Many Albertans are surprised to learn that some assets pass outside the estate entirely.

In these situations, probate may not be necessary.

However, each asset should be reviewed carefully before assuming probate can be avoided.

Jointly Owned Property

Property held in joint tenancy with a right of survivorship often passes automatically to the surviving joint owner.

For example, if spouses own their family home jointly and one spouse dies, the surviving spouse can often become the sole registered owner without obtaining probate.

This usually involves working with a real estate lawyer to register the appropriate Land Titles documents.

It is important to note that not all jointly owned property operates this way. The manner in which ownership is held should always be confirmed.

Assets With Named Beneficiaries

Many registered financial products allow the owner to designate a beneficiary.

Examples include:

• RRSPs;

• RRIFs;

• TFSAs;

• life insurance policies; and

• some pension benefits.

Where a valid beneficiary designation exists, these assets often pass directly to the named beneficiary rather than forming part of the estate.

As a result, probate may not be required for those specific assets.

However, beneficiary designations can have significant legal and tax implications. They should always be considered as part of an overall estate plan rather than viewed solely as a way to avoid probate.

Small Estates

Some smaller estates can be administered without probate.

For example, an estate consisting only of:

• modest personal belongings;

• a small bank account;

• no real estate; and

• no financial institution requiring probate,

may not require a Grant of Probate.

Even in relatively small estates, however, the executor should never assume probate is unnecessary without first confirming the requirements of each institution holding estate assets.

Quick Reference Guide

This table is intended as a general guide only. Every estate is different, and the need for probate depends on the specific assets, ownership structure, and the requirements of the organizations involved.

Common Misconceptions About Probate

Probate is one of the most misunderstood parts of estate administration. Many executors begin the process with assumptions that are only partly true, which can lead to delays, frustration, or unnecessary expense.

Understanding what probate does, and what it does not do, can make the estate administration process much clearer.

Misconception #1: "If There Is a Will, Probate Is Not Required."

This is probably the most common misconception.

A valid will is an essential part of the probate process, but it does not automatically eliminate the need for probate.

A will tells everyone who the deceased wanted to administer the estate and who should inherit their property. Probate is the Court's confirmation that the will is valid and that the executor has the legal authority to act.

Many estates with professionally prepared wills still require probate because financial institutions, investment companies, or the Alberta Land Titles Office require formal proof of the executor's authority.

Misconception #2: "Every Estate Has to Go Through Probate."

The opposite misconception is equally common.

Not every estate requires probate.

Many estates can be administered without obtaining a Grant of Probate, particularly where assets pass outside the estate through:

• joint ownership with right of survivorship;

• valid beneficiary designations; or

• financial institutions that are prepared to release smaller balances without probate.

Each estate must be reviewed individually before determining whether probate is necessary.

Misconception #3: "Probate Is Just a Government Formality."

Probate serves an important legal purpose.

The Court is confirming that:

• the correct will is being relied upon;

• the executor has authority to act;

• beneficiaries and interested parties have received the required notice; and

• third parties can safely rely upon the executor's authority.

Without this process, banks, investment firms, and land registries would have little protection if someone presented an outdated will or claimed to be the executor without proper authority.

Misconception #4: "The Executor Can Access Every Asset Immediately."

Being named as executor does not automatically allow someone to access estate assets.

Many organizations will freeze accounts until they have reviewed the required documentation.

Depending on the circumstances, they may request:

• the original will;

• an official death certificate;

• identification;

• executor forms;

• indemnities; or

• a Grant of Probate.

Executors should expect that each institution will have its own procedures and documentation requirements.

Misconception #5: "Probate Means the Estate Can Be Distributed Immediately."

Receiving a Grant of Probate is a significant milestone, but it is not the end of the executor's responsibilities.

After probate is granted, the executor must still:

• collect estate assets;

• pay outstanding debts;

• prepare and file any required tax returns;

• ensure taxes have been paid;

• obtain a CRA Clearance Certificate where appropriate before making final distributions;

• prepare estate accounts; and

• distribute the remaining estate according to the will.

Depending on the complexity of the estate, this process often takes many months and, in many cases, more than a year.

Why Do Banks Sometimes Require Probate?

Many executors become frustrated when a bank refuses to release funds even after being shown the original will.

From the bank's perspective, the concern is not whether the will appears genuine—it is whether the bank can safely rely upon it.

If a bank releases estate funds to someone who later turns out not to have legal authority, it could face legal claims from beneficiaries or other interested parties.

For that reason, banks often require probate before releasing substantial assets.

Each financial institution establishes its own internal policies regarding when probate will be required. These policies may vary depending on:

• the value of the account;

• the type of account;

• whether there are multiple beneficiaries;

• whether there are concerns about the estate; and

• the level of risk perceived by the institution.

For this reason, two banks may make different decisions regarding similar estates.

Practical Example

Robert dies leaving a valid will naming his daughter as executor.

He has:

• a $12,000 chequing account at one bank; and

• a $420,000 investment portfolio at another financial institution.

The bank holding the chequing account reviews the documentation and agrees to release the funds without requiring probate.

The investment firm, however, requires a Grant of Probate before transferring the investments.

Neither institution is necessarily right or wrong—they are simply applying their own policies based on the assets they hold and the level of legal risk involved.

Costs and Timelines

One of the first questions executors ask is how much probate will cost and how long it will take.

The answer depends on the size and complexity of the estate.

Court Filing Fees

Unlike some provinces, Alberta does not calculate probate court filing fees as a percentage of the estate's value.

Instead, Alberta charges fixed court filing fees, which are established under the Surrogate Rules and depend on the value of the estate. Because these fees can change over time, executors should confirm the current amounts before filing their application.

Other Possible Costs

In addition to the court filing fee, an estate may incur expenses such as:

• legal fees;

• accounting fees;

• property appraisals;

• business valuations;

• land title charges;

• courier and document certification costs;

• death certificates;

• tax preparation fees; and

• other administration expenses.

Not every estate will incur all of these costs.

How Long Does Probate Take?

Every estate is different.

Once a complete probate application has been filed, the Court's processing time depends on its workload and whether additional information is required.

However, probate itself is only one stage of estate administration.

Even after probate has been granted, the executor must continue administering the estate before making final distributions.

For many estates, the complete administration process takes at least one year, particularly where tax matters remain outstanding or real estate must be sold.

Common Mistakes Executors Make

Assuming Probate Is or Isn't Required

Executors sometimes assume probate is unnecessary because a will exists—or assume it is automatically required simply because someone has died.

Neither assumption is correct.

The executor should review each estate asset and confirm the requirements of every institution before deciding whether probate is necessary.

Selling or Transferring Assets Too Soon

Executors should ensure they have the legal authority to deal with estate assets before attempting to sell or transfer them.

In many cases, institutions will refuse to complete transactions until probate has been granted.

Distributing the Estate Before Debts and Taxes Are Paid

Beneficiaries are often eager to receive their inheritance.

However, executors have a duty to ensure that estate debts, taxes, and other obligations are properly addressed before making final distributions.

Distributing an estate too early can expose an executor to unnecessary personal risk if insufficient funds remain to satisfy outstanding liabilities.

Failing to Keep Records

Executors should maintain detailed records of:

• estate income;

• expenses;

• payments;

• correspondence;

• receipts;

• bank statements; and

• decisions made throughout the administration.

Good record-keeping protects both the executor and the beneficiaries and helps avoid misunderstandings later.

Waiting Too Long to Seek Advice

Many probate issues are easier to resolve early than after problems arise.

If an executor is uncertain whether probate is required or encounters disagreements among beneficiaries or financial institutions, obtaining legal advice early can often prevent delays and additional expense.

When Should You Speak With a Probate Lawyer?

Not every estate requires legal representation, and not every estate requires probate.

However, obtaining legal advice can be particularly valuable where:

• you are unsure whether probate is required;

• the deceased owned real estate in their sole name;

• there are significant investments or business interests;

• beneficiaries disagree about the administration of the estate;

• someone questions the validity of the will;

• there are multiple wills or uncertainty about which will is the most recent;

• beneficiaries live outside Canada;

• the estate has significant debts or potential tax issues;

• the executor does not feel comfortable administering the estate; or

• you simply want to ensure the estate is administered correctly.

A probate lawyer can review the estate, determine whether a Grant of Probate is necessary, prepare the required court documents where appropriate, and guide the executor through each stage of the administration process.

Seeking advice early often prevents delays, reduces stress, and helps avoid costly mistakes.

How Bridgestone Law Can Help

Administering an estate while grieving the loss of a loved one can feel overwhelming, particularly when you are unsure whether probate is required.

At Bridgestone Law, we assist executors and families throughout Calgary and Alberta with every stage of the probate and estate administration process. We can review the assets of the estate, determine whether a Grant of Probate is required, prepare and file probate applications, advise executors on their legal responsibilities, and assist with the administration of estates from beginning to end.

Whether the estate is straightforward or involves complex assets, business interests, disputes, or tax considerations, our goal is to provide practical advice and clear guidance so that executors can move forward with confidence while fulfilling their legal obligations.